Could Trump Be Guilty Of Obstruction Of Justice?


Publish Date:
May 17, 2017
  • Gunter, Joel
BBC News
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Reports that Donald Trump asked former FBI director James Comey to shut down a federal investigation into former national security adviser Michael Flynn have added weight to a possible obstruction of justice case against the president, law professors say.

According to a New York Times account of a memo written by Mr Comey, Mr Trump told the FBI director during a private Oval Office meeting in February: “I hope you can see your way clear to letting this go, to letting Flynn go… He is a good guy. I hope you can let this go.”

There are cases in which an official might legitimately request that prosecutors drop a case, in order for example to avoid the disclosure of classified information. Mr Trump’s comments, and the context in which he said them, would have to be assessed for evidence of intent, said David Sklansky, a Stanford law professor.

“This isn’t a smoking gun on its own, but I’m not sure you can ever have a smoking gun when it comes to intent,” he said. “You prove intent by putting together what someone said with circumstantial evidence and what we know about their actions.

“For example, is it more reasonable to infer, based on what we know about the president, that he was concerned the FBI wasn’t prudently shepherding its resources, or is it more reasonable to assume that he was worried about something coming out that would make him or an associate look bad?”

Obstruction of justice is a criminal offence, but criminal proceedings against the president are highly unlikely, said Mr Sklansky.

“The Department of Justice has concluded in the past that bringing a criminal case against a sitting president would be constitutionally unfeasible,” he said. “If there is going to be some kind of legal action against the president it will be an impeachment.”

“The major political question is what it will take to convince large numbers of Republicans that they should no longer support Trump,” said Mr Sklansky. “And I don’t think we know the answer to that yet.”

If the answer takes the form of unwavering support for the president the country could find itself in crisis, said Pamela Karlan, a Stanford Law School professor.

“Right now this is a president behaving extraordinarily badly,” she said. “But if it becomes clear that the president is trying to obstruct justice and Congress does nothing, that moves us towards a constitutional crisis.

“If Congress cannot fulfil its role as a check on the president, that’s a real problem.”

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